Copyright, terms of use and Flipboard

It can be a visually stunning way of presenting information, this new tool called Flipboard.

It’s billed as “your personal magazine, filled with the things you care about.” And as a way to “catch up on the news, discover amazing things from around the world, or stay connected to the people closest to you—all in one place.”1

A way to “save your favorite stories, photos and videos from across the web. Then create your own beautiful magazines on any topic … and share your magazines with friends.”2

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”3 And in the context of a service like Flipboard, the whole focus is on use: the terms of use govern whether we can use the service and, if we do, what rights we’re giving Flipboard — or giving up to Flipboard.

But because we’re talking about aggregating content here — gathering up materials and reproducing them in a different format as a magazine to share with others — we also have to talk about copyright. Because Flipboard’s terms of use say if it turns out that there is a copyright problem with a magazine you produce, every last bit of the responsibility and liability is yours.

Not only will Flipboard walk away from any sharing of responsibility with you, it makes you agree to pay its expenses — including legal fees — if any third party sues Flipboard because of a magazine you’ve produced.

The terms of use are set out in plain English at the Flipboard Terms of Use page, last updated 26 March 2013. And before you use a service like this, it’s critically important that you understand what you’re letting yourself in for.

As a user of Flipboard content — as somebody who just reads a magazine there — you have to agree that Flipboard has absolutely no responsibility to you at all:

You acknowledge and agree that Flipboard: (a) is not responsible for the availability or accuracy of such Third Party Materials or User Content or the products or services on or available from such Third Party Materials or User Content; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to, reliance on or use of such Third Party Materials or User Content; (c) does not undertake or assume any duty to monitor the Flipboard Application for inappropriate or unlawful content; and (d) does not make any promises to remove Third Party Materials or User Content from being accessed through the Services.4

In short, as a reader of Flipboard magazines, you’re on your own. Period.

But it’s as a producer of Flipboard content — as somebody who might want to create a magazine there to share with friends — that the terms of use get really hinky. Because there too you’re entirely on your own, and any mistake you make in terms of using somebody else’s copyrighted content as part of your magazine can be a very costly mistake indeed.

First, Flipboard makes it clear that — even though it’s designed to let you “save your favorite stories, photos and videos from across the web. Then create your own beautiful magazines on any topic … and share your magazines with friends”5 — it doesn’t want you to copy materials from others that are copyright-protected:

These Terms of Use do not authorize you to, and you may not, reproduce, distribute, publicly display, publicly perform, communicate to the public, make available, create derivative works of or otherwise use or exploit any Third Party Materials in violation of applicable copyright law, and the owners of such Third Party Materials may have the right to seek damages against you for any such violation.6

Instead, it requires that:

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Flipboard the rights in such User Content, as contemplated under these Terms of Use; (b) neither the User Content nor your accessing, posting, submission or transmittal of the User Content or Flipboard’s Use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; and (c) no payments of any kind shall be due to any third party, whether a copyright owner or an agent thereof, for any Use made of the User Content (or any portion thereof) on, through or by means of the Site and the Services.7

And if that’s not clear enough, it goes on: “You may not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.”8

It warns that it has the right to “investigate and take all appropriate legal action to prevent, stop or deter violations …, including infringement of intellectual property rights”9 that it can “suspend or terminate your account, or refuse to provide you with access to the Site or Services” and “notify authorities or take any actions it deems appropriate, without notice to you” if it thinks you’re in violation of the terms of use or the law.10

And if anyone does sue Flipboard, claiming that you violated copyright by including content in your magazine, “You agree to defend, indemnify, and hold Flipboard, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees…”11 That means you end up paying not only your own lawyers, but Flipboard’s lawyers too.12

And any dispute you have with Flipboard has to go to arbitration rather than to court, and you can’t join with other users in a class action.13

So what does this all mean?

It means that the only content you should include in a Flipboard magazine is content you produce (something you write, photos you take) or that you’re 100% sure is free of copyright concerns.

The exact same issues apply here as apply to Pinterest or other content-aggregator sites. These sites have a defense to a copyright claim if they’re sued because they told their users not to violate copyright. But as individuals, we don’t have that defense.14

So go ahead and use Flipboard. You can produce some gorgeous works if you do. But be careful about what you include. Some things out on the Internet are fair game; others are not. You won’t get into trouble using only your own work, and you can include things that are in the public domain15 or that are covered by a Creative Commons license as long as you stay within the precise terms of the license.16

As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” U.S. Copyright Office, “Definitions” (http://www.copyright.gov : accessed 9 Apr 2014). ↩

It seems as if the very nature of Flipboard (yank stuff off the web and plop it into your very own magazine) is inviting trouble for the user. Having worked in intellectual property I know own squirrely all this can get. How in the heck are most average folk supposed to know what is in the public domain and what is covered by copyright law? The answer is: they won’t. Why do I have a feeling bad things may come of this for some out there who already, regularly, show a lack of respect for other people’s stuff. How many people do you think actually “read” (as opposed to scrolling through and clicking on “I Accept”) the terms of use.

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